This Is A Constitutional Crisis

Trump’s move to displace the legitimate head of the Consumer Financial Protection Bureau assaults consumers—and violates the rule of law.

By John Nichols

There is a tendency to presume that a “constitutional crisis” must involve generals exercising unwarranted authority in a clash with civilian leaders—or a president firing an FBI director because he feels threatened by inquiries into wrongdoing by that president’s aides and allies.

But some form of constitutional crisis can occur whenever competing views of how the federal government should operate clash with one another. The crisis becomes severe when one side of the disagreement chooses to assert its position by disobeying laws that are on the books in order to achieve political ends.

That’s what is happening now with the Consumer Financial Protection Bureau.

The CFPB is an independent agency with clearly defined mandates and rules, spelled out by the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010, which created the agency.

When CFPB director Richard Cordray stepped down this month, there was no mystery as to who should succeed him. The Dodd-Frank law says that the deputy director “shall serve as acting directorin the absence or unavailability of the director.” Before his exit, Cordray named his able chief of staff, Leandra English, as deputy director. That set English up to serve as acting director until President Trump nominates a new director and that nominee is confirmed by the Senate.

But President Trump, whose disrespect for independent agencies has been well established, and who had been particularly critical of the CFPB, had other ideas. He named Office of Management and Budget director Mick Mulvaney as the acting director.

Trump had no legitimate authority to make that appointment. As Senator Elizabeth Warren, the Massachusetts Democrat who was the leading advocate for establishing the CFPB, explains.

[The] law that Congress put in place specifically says the deputy director takes over when the director is absent or unavailable. So if we’re going to have a deputy director who’s going to take over on an interim basis, it ought to be done according to the law. There’s no vacancy here for Donald Trump to fill.

Marty Lederman, a law professor at the Georgetown University Law Center, writes that

Dodd-Frank does not say that she “may” serve. It doesn’t even say, as other statutes do, that she “shall serve” unless and until the President appoints someone else to do so.… In such cases of an unequivocal, mandatory statutory designation of the acting officer, the argument goes, the President may not exercise his appointment authority under the VRA, because Congress itself has already settled the question of who serves.